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The New York City Office of Environmental Remediation released an update to its Searchable Property Environmental E-Database (SPEED 2.0) environmental mapping tool in April. SPEED is a useful due diligence tool that allows users to obtain environmental information at a city, borough, neighborhood or site level. All of SPEED’s data is regularly updated to provide an accurate snapshot for each user.
SPEED users can obtain information about properties with E-Designations, Environmental Restrictive Declarations, open and closed petroleum spills, bulk storage sites, solid waste facilities and New York State Environmental Zones. Other environmental interactive features include rezoned areas, vacant lots, floodplain and wetland boundaries.
For access to SPEED click here.
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For the second time this week, the United States Supreme Court surprised environmental groups when it held in County of Maui v. Hawaii Wildlife Fund that the Clean Water Act permitting requirements applied not only to direct discharges of pollutants from point sources but also to discharges to groundwater that are the “functional equivalent” of direct discharges.
The issue at the center of the dispute was if a Hawaii county wastewater injection facility should have obtained a permit before releasing pollutants into groundwater that later reached the Pacific Ocean. The Court of Appeals for the Ninth Circuit had ruled that Maui County’s Lahaina Wastewater Reclamation Facility was subject to the Clean Water Act permitting requirements because the pollution in the ocean was “fairly traceable” to the facility’s wells.” The case was remanded back to the appeals court to revisit its determination using the test articulated by the majority.
Interestingly, none of the parties to the litigation had proposed the concept of a “functional equivalent” of a direct discharges from point sources in their briefs. Instead, it was Justice Breyer, who wrote the majority opinion, who first raised what amounted to a middle ground formulation as a potential way to resolve the case during oral argument.
The majority opinion also not did not engage in any Chevron deference analysis even though the relevant statutory language was somewhat ambiguous as to its precise application. This was because none of the litigants had raised this issue.
Justice Brett Kavanaugh joined the majority but wrote a separate concurring opinion. Justices Clarence Thomas and Samuel Alito wrote dissenting opinions. Justice Neil Gorsuch joined Thomas’ dissent. The dissenting opinions were largely based on a textual reading of the statute but differed on the meaning of the words “any” and “addition” of a pollutant. Justice Alito asserted that Justice Thomas’s interpretation was too narrow and could lead to some discharges that should be covered under the Act being excluded from the CWA permitting program.
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The Trump Administration completed the second step of its two-step dance to replace the controversial 2015 Waters of the United States (“WOTUS) rule when it published the “Navigable Waters Protection Rule (“Step Two Rule”) in the April 21, 2020 issue of the Federal Register. The final rule which was issued jointly by the federal Environmental Protection Agency and Army Corps of Engineers (the “agencies”) becomes effective on June 22, 2020.
The agencies published the so-called Step One rule (the 2019 Rule) on October 22, 2019 (84 Fed.Reg 56626) which repealed the WOTUS Rule and restored the regulatory text to that which existed prior to WOTUS as an interim matter until the Step Two rule could be finalized.. The 2019 Rule became effective on December 23, 2019.
The Agencies state that the Step Two rule re-defines the scope of waters subject to federal regulation under the Clean Water Act (CWA) in accordance with a string of Supreme Court cases and is consistent with the Executive Order 13778 signed by President Trump on February 28, 2017 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States’ Rule.” The agencies also said that rule “is intended to ensure that the agencies operate within the scope of the Federal government’s authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.”
In Step Two, the agencies divide the universe of Waters of the United States into two categories: Jurisdictional Waters and Non- Jurisdictional Waters.
33 C.F.R. 328.3(a) of the Step 2 rule identifies the following four categories of waters as Jurisdiction Waters::
- The territorial seas and traditional navigable waters;
- perennial and intermittent tributaries that contribute surface water flow to such waters– A “tributary” is defined in the Step Two rule as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to be perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or other similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term “tributary” includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch is perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. ;
- certain lakes, ponds, and impoundments of jurisdictional waters– ; The final rule defines “lakes and ponds, and impoundments of jurisdictional waters” as standing bodies of open water that contribute surface water flow in a typical year to a territorial sea or traditional navigable water either directly or through a tributary, another jurisdictional lake, pond, or impoundment, or an adjacent wetland. The agencies note that to be jurisdictional, an “impoundment of a jurisdictional water” must be an impoundment of a territorial sea or traditional navigable water, tributary, jurisdictional lake or pond, or an adjacent wetland, and must meet the conditions in paragraph (c)(6) of the final rule. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake, pond, or impoundment of a jurisdictional water is also jurisdictional if, in a typical year, it is inundated by flooding from a territorial sea or traditional navigable water, or tributary, or from another jurisdictional lake, pond, or impoundment.
- wetlands adjacent to other jurisdictional waters- The final rule defines “adjacent wetlands” as wetlands that abut a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water; are inundated by flooding from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water in a typical year; are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by a natural berm, bank, dune, or similar natural feature; or are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrological surface connection to the territorial sea or traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. “Abut” means when a wetland touches a territorial sea, traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water at least at one point or side. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.
Paragraph 33 C.F.R. 328.3(b) identifies those waters and features that are excluded from the definition of “waters of the United States.” These Non-Jurisdictional Waters are all waters or features not mentioned in paragraph (a) and the following 12 specific types of waters:
- Groundwater, including groundwater drained through subsurface drainage systems;
- ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools;
- diffuse stormwater runoff and directional sheet flow over upland;
- ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
- prior converted cropland;
- artificially irrigated areas that would revert to upland if artificial irrigation ceases;
- artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;
- water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
- stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
- groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and
- waste treatment systems.
In addition, the agencies have defined the terms “upland,” “prior converted cropland,” and “waste treatment system” to improve regulatory predictability and clarity.
Based on a plain reading of the statutory language and the legislative history, it appears that the Step 2 Rule is more faithful to Congressional intent when it enacted the Clean Water Act (“CWA”) in 1972 than WOTUS. That Congress clearly did not contemplate or authorize the federal government to assert jurisdiction over isolated and remote bodies of water. Of course, the 1972 Congress did not have the scientific data about the impact that these water bodies could have on waters that fairly could be considered jurisdictional. However, the answer was not to engage in what amounted to an unconstitutional assertion of federal jurisdiction over isolated and intrastate waters that WOTUS represented. In our Constitutional form of government, the proper approach would have been for the Executive Branch to provide the data to Congress and ask Congress to revise the statute. If Congress disagrees with the narrow interpretation of the scope of waters of the United States adopted by The Trump Administration, it can amend the law.
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The Ohio EPA Division of Environmental Response and Revitalization’s (DERR) issued revised vapor intrusion Guidance. The document was developed using established guidance from the United States (U.S.) Environmental Protection Agency (EPA), the Interstate Technology Resource Council (ITRC), American Society of Testing and Materials (ASTM), and other states. The agency gave a special thanks to to the California Environmental Protection Agency, Department of Toxic Substances Control for granting permission to use the state guidance as a template.
The revised guidance applies to sites in the enrolled in the state Voluntary Action Program (VAP) and Remedial Programs (CERCLA, RCRA, and Federal Facilities Section). The new guidance includes sections on petroleum vapor intrusion, evaluation of imminent hazards and long-term management for sites with mitigation systems.
The Minnesota Pollution Control Agency (MPCA) issues a guidance document for design and operation of parking facility that will be used as a mitigation option for vapor intrusion. The Guidance applies to both proposed and existing parking facilities.
The agency states that while current codes require both physical barriers and ventilation to provide continuous air barriers between parking facilities and occupied spaces, building materials commonly used to construct parking facilities may not prevent vapor intrusion which is why vapor intrusion should be considered during the design process. Even
with the best construction materials and techniques, seals and air barriers can leak. The leaks may increase with time if these barriers are not properly maintained. Because no building is perfectly sealed and building materials degrade over time, if parking structures do not vent effectively or periodically, there is a risk of vapors migrating into occupied space. Thus, combining physical barriers with ventilation will provide additional protection from vapor intrusion
If a parking facility is utilized for a vapor intrusion mitigation option, MPCA states it is important to be able to rely on the ventilation system and building components as originally installed. Ongoing regular maintenance coupled with monitoring of the ventilation system may be required to confirm future effectiveness. Additional measures should be considered to increase the long term effectiveness, including post-construction confirmation sampling, diagnostic testing, and implementation of an O&M plan to verify a parking facility provides the required vapor intrusion protections.
The guidance is a comprehensive document that contains useful information that could help inform design of parking facilities and might
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California’s Department of Toxic Substances Control (DTSC) and the State Water Resources Control Board have issued draft supplemental Vapor Intrusion guidance. The draft “Draft Supplemental Guidance: Screening and Evaluating Vapor Intrusion” was released for review and public comment on February 14, 2020. However, because of the Covid-19 public health emergency, the public comment period is extended to June 1, 2020, and the original public information meetings scheduled for April 2020 are postponed until further notice.
The draft guidance supplements existing CalEPA guidance and is intended to promote consistency across the various California regulatory agencies. It provides information on the following topics:
- Soil gas, subslab, indoor air, and outdoor air sampling recommendations that are focused on understanding spatial and temporal variability
- Recommendations for use of USEPA 2015 vapor intrusion attenuation factors
- Risk management framework for vapor intrusion
- California-specific vapor intrusion database in Geotracker
The proposed screening levels are 15 – 30 times lower than values previously used in California. As a result, the new guidance will substantially increase the number of contaminated sites requiring vapor intrusion investigation. The guidance is available at https://dtsc.ca.gov/vapor-intrusion
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In our post discussing EPA’s Enforcement Discretion guidance, we mentioned that EPA was working on guidance for performing remedial actions during the Covid-19 crisis. On April 10th, EPA issued its “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” (Interim Guidance) to regional offices when determining to continue, reduce, or pause on-site activities because of complications related to restrictions imposed by states in response to Covid-19 pandemic. The Interim Guidance is available Here
The Interim Guidance supplements the “Office of Land and Emergency Management Considerations and Posture for COVID-19 Pandemic” guidance dated March 19, 2020 and provides additional criteria when determining if field work should continue or be suspended at sites where EPA is the lead agency or has direct oversight of or responsibility for response actions being performed under the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank (UST) program. EPA also indicated that states may use the guidance at state-lead RCRA cleanup sites.
EPA said regional offices should consider the following priorities when deciding to alter or pause on-site activities:
- Protecting the health and safety of the public, as well as maintaining the health and safety of EPA staff and cleanup partners, is the Agency’s highest priority. Integral to the protection of health and safety is the close coordination with federal, state, tribal, or local health authorities.
- Maintaining EPA’s ability to prevent and respond to environmental emergencies, is also a critical priority for the Agency.
In the Press Release announcing the Interim Guidance, EPA said the same principles should apply when responding to requests by third parties such as states, other federal agencies and private parties seeking extensions or delays in performance. These decisions are to be made in accordance with any existing agreements or enforcement instruments.
The press release also indicated EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites ( 12% of all EPA sites with ongoing remedial actions) due to the evolving COVID-19 crisis. The agency explained that regional offices have agreed to reduce or suspend response actions at particular sites for the following reasons:
- State, tribal, or local health officials have requested particular site operations or types of operations that would pertain to particular sites be suspended.
- Site workers have tested positive for or exhibited symptoms of COVID-19.
- Sites where there may be close interaction with high risk groups or those under quarantine, such as work inside homes.
- Sites where contractor field personnel are not able to work due to state, tribal, or local travel restrictions or medical quarantine, and
- Sites where social distancing is not possible
General Guidance for Evaluating Response Action Suspensions/Alterations–
The Interim Guidance states that in states where emergency orders have been issued that restrict activities of non-essential services, the regional offices are directed to determine if site operations should be continued or secure a site until the public health threat associated with the declaration is resolved. Even where such emergency orders have not been issued, regional offices are instructed to be guided by the following criteria when deciding to start or continue response actions:
- The safety and availability of work crews, EPA or state staff;
- the critical nature of the work;
- logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and
- other factors particular to a site
Regions are also directed to review and modify, where appropriate, a site health and safety plan (HASP) to ensure that it accounts for the CDC’s and other applicable COVID-19 guidelines, including any potential virus transmission into or across areas.
In all instances, regional offices are expected to evaluate and periodically re-evaluate the status of ongoing response work at sites and the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners.
In addition, the Interim Guidance recommends that Superfund site teams cancel or postpone in-person public meeting events, door-to-door visits, and other site-related face to face interactions to be consistent with current COVID-19 guidance from the CDC and other federal, state, tribal and local officials. EPA also encourages regional staff to comply with public participation requirements by using virtual and other communication tools such as on-line meetings, webinars, conference calls, and call-in numbers, as well as fact sheets, postcards, phone, and social media.
Site-Specific Factors for Evaluating Response Action Suspensions/Alterations
To promote consistent decision-making across the regional offices for similarly- situated sites, the Interim Guidance sets forth some factors that regions should consider when determining if to continue, modify or suspend on-site field work. The Interim Guidance emphasizes that these factors should not be considered in a manner that would override protection against unnecessary potential exposure to COVID-19.
Moreover, EPA re-affirms that decisions to extend obligations or pause work obligations do not operate to supersede or amend enforcement instruments. These enforcement instruments usually contain provisions allowing for adjustments to schedules at the discretion of EPA’s project manager, and/or force majeure provisions that generally require responsible parties to provide a notice and facts justifying a requested extension.
Sites Posing Imminent and Substantial Endangerment– Regions should determine if failure to continue a response action would likely pose an imminent and substantial endangerment to human health or the environment and if it is practical to continue such actions. The interim guidance provided the following examples of such sites:
- Emergency Response and Time Critical Removal Sites;
- Sites with an ongoing or a threat of imminent acute or direct human exposures- These are sites where halting response action could compromise public health and include where:
- EPA or responsible parties are providing alternative water supplies because of contaminated drinking water; or
- There are individuals with ongoing on-site exposures, such as lead, arsenic, other heavy metals, PCBs, asbestos, vapor intrusion.
3. Sites with prevention of exposures that pose an imminent threat to public health and welfare and the environment- The Interim Guidance identifies the following examples of such sites:
- response actions to prevent a catastrophic event (e.g., mine blow outs, sites with high probability of fire or explosion, etc.);
- Prevent contaminated groundwater plume expansion that is reasonably likely to adversely affect public or private drinking water sources, including continued operation of groundwater pump and treat systems
- Prevent releases to surface waters that are reasonably likely to adversely affect drinking water intakes or communities downstream, including treatment of acid mine drainage
- On-site security or activities necessary to prevent unauthorized access to sites for the safety of life and/or the protection of government property
- Disposal of materials off-site (e.g., mine waste, chat, unsafe cylinders) that create an imminent safety issue if not promptly removed
- Assess potential or actual vapor intrusion, especially into structures with sensitive populations (consideration should be given to the relative risks and be coordinated with residents as appropriate)
- Complete, continue, or take measures to stabilize in-process response actions to ensure unacceptable releases to the environment do not occur (e.g., deactivation and decommissioning of a former nuclear facility, soil excavation, partial closure of a landfill disposal cell)
Response Actions That Could Reduce Human Exposures/Risks Within Six Months– Regions may consider maintaining response actions that would lead to a reduction in human health risk/exposure within the ensuing six months. This may include, but are not limited to:
- Vapor intrusion investigations;
- Residential site work with current exposures to residents
- Drinking water work
Response Actions Not Likely to Provide Near-Term Human Health Reductions- The Interim Guidance suggest that work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling of site work, in coordination with state and local officials and with updated HASPs as appropriate. Examples include:
- Periodic monitoring
- Routine sampling activities that typically are considered for five-year reviews or compliance with existing agreements
- Field sampling for remedial investigation/feasibility study (RI/FS) or RCRA facility investigation (RFI) work
- Active remediation of otherwise stable conditions (e.g. active remediation of stable groundwater plumes)
Conducting Non-Field Site Work
The Interim Guidance states that important work such as investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, work plans, progress reports, and maintaining compliance with obligations such as financial assurance can be conducted virtually and represent opportunities to make progress on primary activities.
However, EPA also recognized that because of the national scope of COVID-19, some work that normally takes place away from a site may be impacted because supporting operations (e.g. laboratories, equipment) and materials are unavailable or have been diverted to other uses in consideration of the national interests. Parties who believe that COVID-19 restrictions may delay their performance of non-field related work should consult the procedures set forth in the applicable enforcement instrument.
The Interim Guidance indicates that parties who believe that COVID-19 restrictions may delay their performance of obligations should consult the applicable enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions to determine the notice requirements including timing of the notice and the information required to be included in the notice.
Modifications to a party’s performance obligations will be made on a case-by case basis in accordance with the terms of the applicable enforcement instrument. The formal determination will be based on the site-specific circumstances, particularly the type of work that is affected by COVID-19.
*Impact of COVID-19 on Complying With All Appropriate Inquiries (AAI)*-
Neither EPA’s Enforcement Discretion memo or the Interim Guidance address how EPA will respond to situations where prospective purchasers or tenants who have conducted phase 1 reports that do not strictly comply with the AAI requirements because the environmental consultant could not complete a site inspection due to restrictions imposed by state emergency orders shutting down non-essential businesses. In our next post, we will discuss how parties seeking to qualify for the CERCLA landowner liability protections may use the ASTM E1527-13 standard to address these limitations.
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Revised ESD Essential Services Guidance Appears to Include Phase 1 Reports and End Confusion for Consultants
As we discussed in a prior Post, the Empire State Development Corporation (ESD) issued a guidance document that were exempt from Governor Cuomo’s Executive Order 202.8 banning non-essential services from operating to control the spread of the covid19 virus. In response, the New York State Department of Environmental Conservation (“NYSDEC”) issued its own Guidance describing the activities overseen its Division of Environmental Remediation (DER) that would be considered essential services.
These guidance documents called into question if environmental consultants could perform phase 1 Environmental Site Assessments (“ESAs”) that are required for property owners and tenants to qualify for certain landowner liability protections under the federal superfund program. The uncertainty was because the NYSDEC limited investigations that were considered essential services to:
“investigations, including pre-design investigations, of petroleum and hazardous waste releases as determined by NYSDEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.”
Some consultants viewed this language as precluding pre-acquisition phase 1 reports for lenders and purchasers because phase 1 reports ordinarily are not performed “to address potential human exposures and/or threat of significant contaminant migration” since the purchaser or lender would not control the site and would not have the ability to take actions to protect occupants (Arguably, reports for owners could qualify since they could be said to be doing them to assess risks to their tenants). Other consultants adopted a more nuanced view and were performing phase 1 reports for vacant sites, industrial/commercial sites where employees can vacate and conditions are safe, and other sites deemed “essential”. However, even these consultants were conducting inspections of occupied residential buildings.
Earlier today, ESD seemingly resolved this conundrum when it issued a Revised Essential Services Guidance containing a new item 14 that provides as follows:
“Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols….”
Although the revised ESD guidance appears to authorize conduction phase 1 reports, there remains significant issues with complying with the requirements of the EPA All Appropriate Inquiries (“AAI”) Rule and the ASTM E1527-13 Phase 1 Standard because it consultants will likely be unable to conduct on-site investigations-which is the key task of the AAI Rule. In our next blog, we will discuss how to use the ASTM E1527-13 Standard to work around this limitation to give clients greater certainty that they have complied with the AAI rule and therefore qualify for the liability protections.
The New York State Department of Environmental Conservation (“NYSDEC”) has received numerous inquiries about issues arising with the execution of Brownfield Cleanup Program (“BCP”) agreements and amendments because of the Covid19 pandemic. In response, the NYSDEC has issued the following guidance:
- The DYSDEC will grant reasonable extensions of time for the execution of Brownfield Cleanup Agreements (BCA) and BCA Amendments on a case-by-case basis. Requests for extensions should be made to the appropriate Project Manager/Project Attorney.
- For pending amendments reflecting the transition from Generation 2 to Generation 3 of the program, the agency has granted an extension until June 1, 2020 for the submission of the executed amendment.
- The NYSDEC is not prepared to dispense with the notary requirement at this time but is currently investigating alternatives. If applicants encounter issues related to obtaining a notarization, the applicant should contact Jennifer Andaloro, Esq., Section Chief, OGC Remediation Bureau at email@example.com.
- The Department will accept electronically signed agreements and amendments during the COVID-19 State of Emergency and will reassess its policy of requiring original/hard copies thereafter.
- As discussed in a previous Post , the NYSDEC has developed guidance interpreting what constitutes essential construction activities under Governor Cuomo’s Executive Order 202.6 for the Brownfield, Superfund and Spill Response programs.
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In a prior post, we discussed a letter NYSDEC issued to staff and standby contrators interpreting Governor Cuomo’s Executive Order 202.6 (EO) and the Empire State Development Corporation Guidance on shutdown of all non-essential services and activities.
DEC has now posted further clarification on its website that it considers the following activities as essential services:
- Remedial construction activities, including new construction starts, at sites that DEC has determined pose a significant threat to public health and/or the environment, including Class 2 sites on the Registry of Inactive Hazardous Waste Disposal Sites and significant threat sites in the Brownfield Cleanup Program,
- Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants, including completion of site cover systems,
- Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment,
- Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration,
- Spill response actions,
- Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by DEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration
The NYSDEC cautioned that these criteria are subject to change and refinement as the response to the Covid-19 pandemic is fluid. Essential work must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health and every business, even if essential, must maintain social distance to the extent possible.
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To prevent spread of COVID-19, the New York State Department of Environmental Conservation (NYSDEC) will exercise its enforcement discretion with respect to certain provisions of 6 NYCRR Parts 364,372,374-2, and 381. According to a Letter issued by the NYSDEC Office of General Counsel, the agency will not pursue enforcement of requirements for signatures on waste shipping documents. lf a waste shipment is being sent to, or is being received from, a state other than New York, the regulated party should contact the other state regulator to ensure compliance with that state’s requirements.
For hazardous waste shipments, affected parties shall use hybrid and electronic hazardous waste manifests, whenever those options are available to all parties listed on the manifest. If this option is not available to all parties listed on the manifest so that a paper-based hazardous waste manifest must be used, all affected parties must follow the specified procedure from Appendix 30 of 6 NYCRR Part 372 for a transporter signing “on behalf of’ a generator for a hazardous waste shipment.
For Non-Hazardous Waste and Used Oil Shipments, the following procedure must be followed:
- The driver picking up the waste must print the name of the generator in the Generator Name box.
- The driver must write “on behalf of in the Generator Signature box and then sign the driver’s name in the appropriate space.
- lf there is only a Generator Signature box on the waste shipping document, the driver must write “on behalf of’, print the generator’s name, and then sign the driver’s name in that box.
For Low-Level Radioactive Waste Shipments, all affected parties shall follow the specified procedure in 6 NYCRR 381.12for a transporter signing “on behalf of’ a generator for a low-level radioactive waste shipment.
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Pursuant to Empire State Development Corporation’s Guidance on Executive Order 202.6, “trash and recycling collection, processing and disposal services” are considered essential business or entities that are not required to reduce in-person workforce by 100%. The exclusion includes collection, transportation, processing and disposal activities for any solid wastes, regulated medical waste, hazardous wastes, radioactive wastes and other associated waste categories. This also includes all recyclables including redemption of bottle bill containers.
The NYSDEC has Announced that it will not actively enforce violations at facilities unable to fulfill bottle bill redemption operations due to resource restrictions during the ongoing COVID-19 response efforts.
The agency said it recognizes that unintended consequences of the COVID-19 response may make full compliance with requirements challenging for certain facilities and may result in temporary disruptions to required redemption operations.
Redemption of containers is considered an essential service and NYSDEC said that redemption centers should implement appropriate social distancing practices whenever and wherever possible.
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On March 30th, the NYC Department of Buildings issued a memo implementing Governor Cuomo’s Executive Order 202.6 (EO) and New York State Empire Development Corporation Guidance requiring the shutdown of all non-essential construction except emergency construction
For projects enrolled in its Voluntary Cleanup Program or the “e” designation program, OER will implement the construction ban on as follows:
- Affordable housing projects (defined as those building affordable inclusionary housing, mandatory inclusionary housing or sites where 30% of more of the residential units are affordable) are deemed essential and can continue with construction activities. Similarly, other essential projects identified in the Governor’s order, e.g. homeless shelters and transit facilities, etc., can continue with construction.
- OER projects that are considered non-essential but have broken ground and where activities may be suspended without compromising public health must cease construction.
- Sites with approved remedies that have not yet broken ground and their development is not essential per the Governor’s EO cannot commence construction until the Governor’s construction ban is lifted or modified.
- Sites in the investigation sampling phase that are not essential must suspend work.
For each OER site that will continue operations, the development team must submit a statement to the OER Project Manager explaining the basis for each project’s continued operation. These statements must be submitted by the close of business on Wednesday, April 1.
Owners and contractors of construction and demolition sites subject to the suspension order must secure and maintain their sites in accordance with the NYC Department of Buildings Buildings Bulletin 2020-004 .
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The federal Environmental Protection Agency has issued a Memo announcing that it will temporarily exercise enforcement discretion for certain violations where the non-compliance was a result of the COVID-19 pandemic.
EPA’s enforcement discretion policy which is retroactive to March 13th applies to civil violations that occur during the COVID-19 pandemic. It does not apply to intentional criminal violations of law. The policy also does not pertain to remedial activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. EPA will address these matters in separate communications.
The temporary enforcement discretion policy does relieve any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants as required by federal law.
The policy addresses different categories of noncompliance differently. For example, the EPA will not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. However, the agency expects operators of public water systems to continue to ensure the safety of our drinking water supplies.
During the COVID-19 crisis, EPA said it will focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment.
The policy describes the general steps that regulated facilities should take to qualify for enforcement discretion for civil violations.
- Entities should make every effort to comply with their environmental compliance obligations.
- If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the non-compliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in items (a) through (d).
The policy then discusses requirements for specific categories of non-compliance.
Administrative Settlements- If parties to an EPA administrative settlement agreement anticipate missing enforceable milestones or obligations set forth in these documents as a result of COVID-19, EPA said they comply with the notice procedures set forth in the agreement, including notification of a force majeure where applicable. The notification should provide the information required by the agreement. EPA staff will review these notifications and may contact a party to seek adjustments to a proposed plan of action, pursuant to the agreement.
Consent Decrees- Parties to judicial consent decrees are advised to comply with the notice procedures set forth in the consent decree, including notification of a force majeure where applicable for any noncompliance alleged to be caused by COVID-19. EPA staff will coordinate with U.S. Department of Justice (DOJ) to exercise enforcement discretion for stipulated penalties for the routine compliance obligations. However, EPA cautioned that courts retain jurisdiction over consent decrees and may exercise their own authority.
EPA said parties should proceed as proposed in their notice to the EPA (and to DOJ for consent decrees) unless and until contacted by the agency (if an EPA administrative settlement) or DOJ (if a judicial consent decree).
Hazardous Waste Generators
If a facility is a generator of hazardous waste and is unable to transfer the waste off-site due to disruptions caused by the COVID-19 pandemic within the time periods required under RCRA to maintain its generator status, EPA said the facility should continue to properly label and store such waste and take the general steps identified above.
If these general steps are met, the EPA will, as an exercise of enforcement discretion, treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. In addition, the EPA will continue to allow Very Small Quantity Generators and Small Quantity Generators to retain their status even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic.
Failure of Pollution Controls–
If a facility suffers from failure of air emission control or wastewater or waste treatment systems, or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority as quickly as possible. The notification also should include the following information:
- pollutants emitted, discharged, discarded, or released;
- comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and
- the expected duration and timing of the exceedance(s) or releases.
The EPA will consult with authorized states or tribes, as applicable, in accordance with the July 11, 2019 memorandum on “Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work” to determine the appropriate response.
Where the EPA implements the program directly, the EPA will evaluate whether the risk posed by the exceedance, disposal, or release is acute or may create an imminent threat to human health or the environment.
Facility Non-Compliance Posing Acute Risks or Imminent Threats
EPA said it expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. However, if facility operations are impacted by the COVID-19 pandemic and the non-compliance may create an acute risk or an imminent threat to human health or the environment, the facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe). Even where a facility is located in an authorized state, EPA strongly encourages facilities and states to consult with their EPA regional office about the non-compliance that poses a potential for acute risks and imminent threats.
When EPA becomes aware of noncompliance that could result in an acute risk or an imminent threat to human health or the environment, the memo says EPA will act as follows.
- In authorized states, EPA will first consult with the state or tribe to determine if the state-issued permit or regulations have provisions that address the situation and result in a return to compliance.
- Where EPA administers the regulatory program, the agency will take the following actions:
a. The EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation;
b. If there is no permit/regulatory provision that addresses the situation, the EPA will work with the facility to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible;
c. EPA will inform the relevant state or tribe of any acute threats and actions taken in response to the noncompliance; and
d. The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.
EPA indicated that absent exigent circumstances, it would not require facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports when the policy is no longer in effect.
In screening cases for referral to DOJ for potential criminal violations, EPA said it will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law. EPA indicated its Criminal Investigative Division would remain vigilant and is prepared to pursue violators who demonstrate a criminal intent.
Finally, EPA said it may provide additional enforcement guidance applicable to specific regulatory programs on an ongoing basis. The agency also reminded the regulated community that the EPA’s self-disclosure program remains available for violations that are voluntarily reported .
On Saturday, March 21, 2020, New York Governor Andrew Cuomo issued a new Executive Order No. 202.8 (EO 202.8) “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency ” requiring all businesses and not-for-profit entities to require 100% of workers to work from home effective at 8 p.m. Sunday, March 22, 2020.Businesses or entities providing essential services or functions are not be subject to the in-person workplace restrictions
The New York State Department of Economic Development (Development d/b/a Empire State Development) has issued guidance on what constitutes “Essential Services”. Businesses engaging in Essential Services must comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health
Paragraph 11 of the guidance covers “Services and agencies that exist to maintain the safety, sanitation and essential operations of residences or other essential businesses”. Among the type of services listed are:
- Emergency management and response
- other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
The New York State Department of Environmental Conservation (NYSDEC) has advised environmental professionals that these services are being interpreted to apply to emergency (spill) response and remedial activities at inactive hazardous waste sites, including the operation and maintenance of remedial systems put in place for the protection of public health. Thus, parties doing work under one of the DEC’s remedial programs are expected to continue to implement their work plans.
There have been anecdotal reports of delays in field work because of limited personnel availability and obtaining approvals for off-site disposal of contaminated soil. If remedial parties are encountering delays that could impact compliance with approved deliverable schedules, they should advise the NYSDEC project managers to request extensions. Other actions should include documenting the reasons for the delays and efforts taken to avoid or mitigate the delays.